TITLE
IX
“The
law is that schools have an obligation to treat their students fairly -
men and women, boys and girls.” - National Women’s Law Center
Title IX Chronology
• 1966
- DGWS created the Commission on Intercollegiate Athletics for Women (CIAW)
to move them further along the path in sponsoring national championships
for girls/women
• 1967
- “In 1967 women’s sports was a small-time venture, hardly noticed by anyone
but the participants. Doing things differently from the men was practical
and seemed natural.” - Festle
• Late
60’s - social movements ~ aim at eliminating legal barriers to equality
Bernice Sandler’s
Story
• Executive
Order 11246 (Johnson) applicable to federal contractors
• WEAL
Chronology (continued)
• Early
70’s - physical educators began to assume positions as leaders in the quest
to define and achieve equality in athletics. (still
reluctant to be very politically active)
• 1970
- Congress gets in on the act
• Edith
Green (D-OR.) sought protection against discrimination based on sex in
programs that receive Federal funds by proposing legislation that would
mirror the protection that had already been secured in relation to race,
color, and national origin in Title VI of the Civil Rights Act of 1964)
• When
the House held hearings on her proposed bill, many women testified about
various types of discrimination in several settings (athletics was mentioned)
Chronology (continued)
• NCAA
and AIAW continue to “debate” governance and opportunities issues - summed
up by roundtable discussions at NCAA’s 1972 Convention
• June
23, 1972 - Title IX of the Omnibus Education Act of 1972 became public
law!
– Although
regulations and interpretations had yet to surface
• January
1973 - Athletes and teachers at two Florida colleges file lawsuit a/g AIAW’s
ban on scholarships (14th A.
- equal protection argument)
Chronology (continued)
• 1974
- A.D.’s get first glance at HEW’s regulations
– after
declaring athletics was within the law’s scope, regulations went on to
insist that women receive equality in areas of scheduling, facilities,
travel, etc
– reaction:
(sportswriters far worse than A.D./Coach)
• “I’m
all for women’s athletics, but if we had to split our budget, it would
bankrupt us.” - Bear Bryant (UA)
• “While
I support philosophically the principle of equality, as a practical matter
it just won’t work This department
wholly endorses a comprehensive women’s athletic program but that does
not include athletic scholarships or equal sharing of revenue” - Jim Kehoe
(U of Maryland)
Chronology (continued)
• Mid
70’s - physical educators had almost abandoned their earlier philosophy
of silent acceptance (perhaps
realizing the Federal legislative and judicial branches were becoming more
and more friendly to claims involving individual rights and civil liberties) and
had adopted a more politically active and progressive agenda
• May
27, 1975 - President Ford signed authorization for the final Title IX regulation (HEW
published on June 4, 1975)
• July
21, 1975 - Fed reg.s enacted in re: athletics (H.S.
and colleges given three years to comply / elem - one year)
Chronology (continued)
• 1976
- First legal challenge brought by NCAA (application to athletics) / legislative
action to amend also takes place
– defeated
• 1979
- OCR / HEW issued official “Policy Interpretation” for Title IX compliance
in intercollegiate athletics
• 1984
- Grove City v. Bell (athletics excluded / meaning of “program”)
– NCAA
v. Smith, 1999 (is Title IX applicable to NCAA?)
• 1988
- Civil Rights Restoration Act passed (reverses Grove City - “institutional
coverage”)
Chronology (continued)
• 1990
- OCR develops Title IX investigator’s manual
– Procedure
of investigation
• 1992
- Franklin v. Gwinnett County Public Schs
– monetary
damages made available
What areas of
athletics is Title IX concerned with?
• As
established by 1979 “Policy Interpretation” (Investigators
Manual helps OCR officials ask the right questions in regard to:)
– accommodation
of interests and abilities
– scholarship
opportunities
– other
programs areas
• 1)
equipment and supplies
• 2)
scheduling of games and practice time
• 3)
travel and per diem allowances
• 4)
tutoring
• 5)
coaching
• 6)
locker rooms, practice, and competitive facilities
• 7)
medical and training facilities and services
• 8)
housing and dining facilities and services
• 9)
publicity
• 10)
support services; and
• 11)
recruitment of students
Review of 3-prong
Title IX compliance test
• 1)
provide participation opportunities proportionate to undergraduate enrollment,
• Participants
= those athletes who a) are receiving the institutionally sponsored support
normally provided to athletes competing at the institution involved (e.g.
coaching, equipment, medical/training services, on a regular basis during
a sports season) b) are participating in organized practice sessions and
other team meetings c) are listed on the eligibility or squad lists d)
b/c of injury cannot meet a,b, or c but continue to receive financial aid
(based on athletic ability)
• This
means walk-ons, those participating on teams which have to raise some of
their own funds, athletes that practice but that do not compete
2) show a continuing
practice of expanding opportunities for the underrepresented sex, or
• Is
there a plan in place?
• Is
that plan being effectively communicated to students?
• Is
the plan responsive to the developing interests and abilities of upcoming
players?
• Cutting
programs for the over-represented sex does not establish a history of expanding
opportunities for the underrepresented sex
3) show that
interests & abilities of underrepresented sex are being fully &
effectively met
• OCR
will consider whether there is
– A)
unmet interest in a particular sport
– B)
sufficient ability to sustain a team in that sport
– C)
a reasonable expectation of competition for the team
• Factors
OCR considers interest indicators:
-requests
by students that a particular sport be added
-requests
that an existing club sport be elevated in status
-participation
in intramural sports
-interviews
w/students
v - results
of questionnaires
• i.e.
Univ of New Mexico and others
Other considerations…
• Breadth
of Title IX’s reach – rec programs (p.564)
• Other
statutes, legal concepts ensuring gender equity
– 14th
Amendment – Equal Protection
– Title
VII
• Opportunities
to participate free from harassment
– Title
IX
– Title
VII
Conceptually Flawed
• 1)
hidden factors that may create a false perception of law female interest
• 2)
lack of female interest b/c of past discrimination
• 3)
assessment of female interest relative to male interest
• 4)
inappropriate target populations
• 5)
women’s tendency to underrate own ability
1) hidden factors
among participation numbers that may create a false perception of law female
interest
• School/intramural
athletics menu (female interest may lie in sports others than those offered)
• #
of male athletes in football
• squad
sizes
2) lack of female
interest b/c of discrimination
• Measuring
interest at the high school and intercollegiate levels (and other levels)
at this point is stab in the dark - without having opportunities on all
levels for some serious period of time, measuring true or potential interest
is difficult.
3) Relative Interest
• Accommodate
female interest relative to men’s
– i.e.
accommodate 25% of men interested and 25% of women interested
• 125/500
men and 50/200 women would be okay
• Problems?
– Remedial
nature of Title IX - this type of argument where interest of females is
offered as a reason for providing fewer opportunities to them is the very
thing Title IX was enacted to prevent (compare Craig v. Boren - even though
there are statistics….)
• OCR
Policy Int. criteria for determination of interest
4) Inappropriate
Target Populations
• Should
interest survey only target “existing student body”?
– Why?
• Perhaps
appropriate for meeting first prong of test (proportionality), but not
third
– Why
Not?
• Most
athletes aren’t walk-ons / not recruited from student body
• Who
should interest surveys target?
– High
School students from states typically targeted for recruiting
• problems?
5) Women Underrate
Their Ability
• “Women
tend to attribute success to external factors such as luck rather than
to internal factors like skill or preparation.”
• Also
tend to underrate abilities in activities that are considered “non-traditional”
for females (like sport).
• Thus
“asking women to rate their own ability to participate in sport at the
intercollegiate level may result in data that does not accurately reflect
their true abilities.”
– How
does the NCAA survey address this potential problem?
Construction Concerns
• Length
of survey
– issue(s):
• Limited
menu of activities
– issue(s):
• Definition
of Terms
– issue(s):
• Response
Encouraged for Each Question Asked
– issue(s):
• Specific
mention of Title IX/Gender Equity as the reason for survey
– issue(s):
Facts Blitz (Acosta/Carpenter,
2000)
• Avg.
# of women’s sports offered per school = 8.14 (1978=2)
• 1999-2000
- 205 new women’s teams added (more than 1/2 were in Div III - no scholarship
opportunties)
• Soccer
exhibits the greates growth of any sport in the last 23 yrs. It
is now offered for women on 84% of the campuses (1977=2.8% of campuses)
• Lacrosse
and golf have grown quite a bit, while gymnastics has declined somewhat
(similar to what is going on with men’s programs)
• Other
emerging sports: ice hockey, rowing, handball, water polo, archery, badminton,
bowling, squash
• 80%
of new coaching jobs in women’s athletics since 1998 have been filled by
males (1972 = 90% women)
State Legislative
Responses:
• Gender
Equity Bills
Psychological
& Philosophical “War”
• “Backlash”
• “Blaming
the Victim”